Behrendt v. Wilcox

• Decision Date: 05 October 1936
• Docket Number: No. 108.,108.
• Citation: 277 Mich. 232,269 N.W. 155
• Parties: BEHRENDT v. WILCOX.
• Court: Michigan Supreme Court

277 Mich. 232

269 N.W. 155

BEHRENDT

v.WILCOX.

No. 108.

Supreme Court of Michigan.

Oct. 5, 1936.

Quo warranto proceeding by Henry Behrendt against Thomas C. Wilcox. From a judgment ousting the defendant from the office of sheriff of Wayne county, the defendant appeals.

Affirmed. Appeal from Circuit Court, Wayne County; Glenn C. Gillespie, Judge.

Argued before the Entire Bench, except POTTER and TOY, JJ.

David V. Martin, of Detroit (Valois E. Crossley, of Detroit, of counsel), for appellant.

Schmalzriedt, Frye, Granse & Frye, of Detroit, for appellee.

BUSHNELL, Justice.

At the general election, held November 6, 1934, plaintiff, Henry Behrendt, and defendant, Thomas C. Wilcox, were the opposing candidates for the office of sheriff of Wayne county. From the early, and unofficial, returns it became apparent that the race between the two would be exceedingly close, although the combined votes were about 350,000 in the 1,083 election precincts of the county.

Under the provisions of the Michigan Election Law (Act No. 351 of 1925, as amended [Comp.Laws 1929, § 2747 et seq., as amended]), the board of county canvassers is required to meet on the third day after election and canvass the returns of the various boards of election inspectors. When this is completed the board is directed to prepare a written statement containing the number of votes cast for each office and the names of the persons for whom such votes are given. The law requires that this statement be filed with the county clerk. See 1 Comp.Laws 1929, § 3171 (as amended by Pub.Acts 1931, No. 200) and §§ 3172-3180.

When the board met, twelve of the ballot boxes, according to the returns of the election inspectors, appeared to contain more votes cast for some officers than there were voters listed in these precincts, and members of these precinct boards were called before the county canvassing board in an effort to correct the returns.

An assistant prosecuting attorney advised that the canvassing board could not reject the returns of the inspectors of election and an Assistant Attorney General advised the board that it had the power to ‘throw out the twelve precincts in question.’ Before the matter was concluded, plaintiff instituted mandamus proceedings to compel the board to canvass these returns. Three judges of the Wayne circuit, sitting en banc, considered plaintiff's petition and adjourned the matter in order to allow the board sufficient time to complete its canvass. The respective petitions of plaintiff and defendant for a recount of the votes in a large number of precincts was filed before the canvass was finished or the mandamus action finally determined.

Meanwhile other caldrons were brewing. At the same election the people voted for state officers, including the secretary of state. The air was charged with claims of election irregularities, and the Governor was persuaded to call the state Legislature to convene in extraordinary session in joint convention on December 10th for the purpose of considering the election contest between the rival candidates for the office of secretary of state. See Wilson v. Atwood, 270 Mich. 317, 258 N.W. 773;In re Petition for Investigation into Conduct of Recount and Investigation, 270 Mich. 328, 258 N.W. 776;Behrendt v. Board of Canvassers, 269 Mich. 247, 257 N.W. 631, and In re Anthony J. Wilkowski, 270 Mich. 687, 259 N.W. 658. Under telegraphic orders of the Governor, the clerk of Wayne county obtained and held in his custody certain ballot boxes, all of which tended to delay the county recount, which did not begin until 10 p. m. Thursday, December 27th, and continued thereafter contemporaneously with the ‘legislative inquiry into the election of the secretary of State,’ but upon separate floors in the same building in the city of Detroit.

December 28th, the Wayne circuit court issued its writ of mandamus commanding the board of canvassers of Wayne county to certify the election of Behrendt to the office of sheriff for the term commencing January 1, 1935. Application for leave to appeal was promptly made to this court, and upon representations that the recount would be completed before that hour, a stay of proceedings was entered until 4 p. m. Monday, December 31st.

The county recount proceeded rapidly and apparently with great physical fatigue to all concerned, because after an unsuccessful attempt to secure a recess late Saturday night for the purpose of rest, plaintiff's counsel and workers left the recount rooms. The recount continued in their absence, and on Monday, the 31st, the county board certified from its findings that the total number of votes cast for the office of sheriff was 348,319, of which Wilcox received 170,475, and Behrendt 169,645, thereby giving Wilcox a plurality of 830.

The record contains an exhibit entitled ‘County Canvassers Statement and Clerk's return,’ dated December 28, 1934, showing total vote 347,316, Behrendt 169,907, Wilcox 169,255, etc., thereby giving Behrendt a plurality of 652. This exhibit is signed by two members of the board not including the county clerk, nor was it filed in his office.

This information in the nature of quo warranto was filed on January 12, 1935, pursuant to an order of the circuit court granting leave. The matter came on to be heard before Judge Glenn C. Gillespie of the Oakland circuit, sitting in Wayne with a jury. The testimony returned on appeal, which has been reduced by the elimination of certain portions deemed immaterial by counsel, still provides a record of 1,334 pages, all of which has been examined.

Defendant requested the court to submit the cause to the jury for their general verdict, and in event of denial of this request, to submit to the jury the following special questions, claiming authority therefor under rule 37, § 7, Michigan Court Rules 1931:

‘1. Did the plaintiff Henry Behrendt receive a plurality of the lawful votes cast for the office of sheriff of Wayne County at the November, 1934, election?

‘2. Did the members of the Board of Wayne County Canvassers comprised of D. J. Healy, Jacob Summeracki and Elmer B. O'Hara fail to conduct a recount of the votes cast for the office of sheriff of Wayne County?’

To avoid quotation of the lengthy colloquy, which explains the request and its refusal, we give the following from the opinion of the trial judge upon denying defendant's motion for a new trial.

‘Counsel is in error in claiming that there was any change made by the court in the issues. At the opening of the trial and during the first few days of taking testimony counsel had intimated that the question to be determined was whether or not there had been a lawful recount. After much thought on the subject two special questions were framed and submitted to counsel with copies of the proposed charge at least ten days prior to the conclusion of the trial, and counsel were invited at their convenience to prepare and submit any additional requests or to suggest changes in the form of the questions.

‘At the conclusion of the case defendant's counsel requested the court to submit the following special question:

“Did the members of the Board of Wayne County Canvassers, comprised of D. J. Healy, Jr., Jacob P. Summeracki and Elmer B. O'Hara fail to conduct recount of the votes cast for the office of sheriff of Wayne county?'

‘The difficulty with this question is that it was not determinative of the issues, and was not fair to the defendant. That there were some mistakes in counting votes during the recount was not seriously disputed. That fraud was perpetrated by some of the workers cannot be denied. But, with the elimination of such mistakes and fraud, if the final result showed that the defendant received more votes than the plaintiff, he was entitled to a verdict. Had the question offered by defendant's counsel been submitted, a finding by the jury that fraud had been committed in the recount would have been the equivalent of a verdict for the plaintiff.

‘The real issue in the case was, which candidate received a plurality of the votes cast. The jurors had before them testimony as to the count of the votes made by the inspectors of election in the various precincts, and the finding of the Board of County Canvassers that plaintiff had received a plurality of the votes, although no certificate of election was ever issued to him. They also had testimony as to the result as found by the Board of County Canvassers on the recount. They had much testimony as to the manner in which the recount was conducted, and whether or not there was a conspiracy between certain members of the Board of County Canvassers to deprive plaintiff of the office; whether or not there was fraud or mistakes in counting the votes; whether or not the ballots had been marked in favor of the defendant, and whether ballot boxes and their contents had been tampered with so they could not be recounted. If plaintiff's charges in respect to frand in the recount were sustained, and a fair and lawful recount had not been made, then the jurors might consider the vote as returned by the inspectors of election from the various precincts in order to decide which candidate received the most votes. A somewhat similar question was before the court in Attorney General v. May, 97 Mich. 568, 56 N.W. 1035, 1037, where the court said:

“The issue is clearly tendered in the replication that, after the canvass and return of the votes by the board of inspectors of election, the ballot boxes were tampered with, votes in favor of relator destroyed, and others, in favor of the respondent, inserted in their stead. If this be true, it is clear that the original returns of the votes must be taken, subject to be changed by any competent evidence to impeach them, or to show the actual ballots cast.'

‘That there was no change in the issues is best evidenced by the statement of the court in overruling defendant's motion for a directed verdict at the close of plaintiff's case, where the...